1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO . 09
- 12
- 00326
- CR



### ____________________ LEE ROY BIBLE , Appellant
V. THE STATE OF TEXAS , Appellee

_______________________________________________________ ______________ On A ppeal from the 221st District Court Montgomery County, Texas Trial Cause No . 11
- 08
- 08966 CR

________________________________________________________ _____________ MEMORANDUM OPINION Lee Roy Bible was charged with sexually abusing his granddaughter, S.M. A jury convicted Bible of two counts of indecency with a child , and the trial court sentenced Bible to thirty years in prison on each count. In three appellate issues, Bible challenges the adm ission of extraneous

- offense evidence. We affirm the trial court’s judgment.2 We review a trial court’s admission of extraneous

- offense evidence under a n abuse of discretion standard. Rankin v. State , 974 S.W.2d 7 07, 718 (Tex. Crim. App. 1998) (op. on reh’g)

. Evidence of other crimes, wrongs , or acts may be admissible for purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404 (b). Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or b y considerations of undue delay or needless presentation of cumulative evidence. Tex. R. Evid. 403.
In issue one, Bible challenges the admission of evidence based on sexual abuse allegations made in 2000 by another granddaughter, S.B. According to Bible, this evidence was presented through S.M. ’s testimony , Detective Melanie Wood ’s testimony , and an audio r ecording of an interview between Wood and Bible in violation of Rule 403

. At a pretrial motion in limine hearing , the State explained that S.M. gave a delayed outcry because, in 2000, S.B. made sexual abuse allegations against Bible, which led to a physical altercation between S.B.’s father and Bible , after which Bible stopped abusing S.M. and S.M. did not want Bible to get in to trouble . The defense argued that this evidence was highly prejudicial and not probative

. The trial court withheld a ruling. At a later hearing,3 t he parties discussed the admissibility of a n audio recording of Wood’s interview with Bible that contained discussions about S.B. The trial court ordered that the recording be redacted to omit references to S.B., subject to further rulings. During opening statement s , defense counsel argued that S.M.’s father had molested her during the same time period and the evidence would show that :
. . . t here was an incident where

. . . she got a little nervous and fidgety and shied away from a boy, from her boyfriend. And she could see he w as hurt by the way she was responding to h im. And in explanation of that, what does she do? “ My grandpa has been molesting me.”

. . . But who is s he closer to

-- dad or step grandfather? So, in e xplanation, she is not going to tell that boyfrien d: My dad is doing this. She is going to tell: Granddad did it, step granddad did it.
S.M. subsequently testified that she did not disclose the abuse because she was afraid Bible would get in to trouble. On cross

- examination, t he following exchange occurred: Defense Counsel: And you were not afraid your father was going to beat up Mr. Bible because you know what your father was doing to you, correct?
S. M.: Right. Defense Counsel: So you really

-- that’s not the reason for your delayed outcry, correct? S.M.: No. I mean, you’re wrong. That is the reason.4 Defense Counsel: Because you were afraid of your father beating him up? S.M.: Because I was afraid.

. . . Defense Counsel: And this whole thing came about because you had to explain to a boyfriend why you didn’t want him touching you. S.M.: Right. Defense Counsel: Because you put it all on Mr. Bible, right? S.M.: Right. Defense Counsel: You didn’t tell him all the horrible things your dad was doing to you because you didn’t want to get your dad in trouble, right? S.M.: Right. Defense Counsel: And that’s the real reason you’re telling this story about Mr. Bible. S.M.: Right. On redirect, the State argued that the door had been opened to extraneous acts to explain S.M.’s delayed outcry , and the trial court agreed

. Over the defense’s hearsay objections, S.M. testified that she had heard about a physical fight between Bible and her uncle over Bib le ’s inappropriate acts with S. B

. S.M. denied fabricating the allegations against Bible

.5 Before Wood testified , the State expressed intent to offer the audio recording without redacting discussions about S.B. Over Bible’s Rule 403 objections, t he
trial court ruled that the conversations would be admitted and that Wood could testify to this subject

. The record does not indicate that Bible obtained a running objection on Rule 403 grounds. Wood testified that she was involved in a 2000 indecency wi th a child case regarding sexual abuse of S.B. b y Bible

. Wo od testified that S.B.’s father fought with Bible when he heard about the allegatio ns . The trial court gave the jury a limiting instruction regarding Wood’s testimony. The State subsequently played the audio recording for the jury

. We first address the State’s contention that Bible has failed to preserve this issue for appellate review. Bible objected to admission of evidence concerning the 2000 allegations at the pre

- trial motion in limine hearin g, but did not obtain a ruling on his objection at that time. See Tex. R. App. P. 33.1 (a)

. Moreover, “[f] or error to be preserved with regard to the subject of a motion in limine , an objection must be made at the time the subject is raised during trial. ” Fuller v. State , 253 S.W.3d 220 , 23 2 (Tex. Crim. App. 2008). When S.M. testified, however, Bible objected solely on hearsay grounds

. A hearsay objection does not constitute the proper evidentiary b asis for challenging extraneous

- offense evidence. See Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993) (“An objection6 stating one legal theory may not be used to support a different legal theory on
app e al.”)

. Regarding the recorded interview, the trial court initially agreed that references to S .B. should be redacted. Absent an ad verse ruling, however, nothing

wa s preserved for review at that time

. See Flores v. State , 871 S.W.2d 714, 723 (Tex. Crim. App. 1993). B y the time Wood testified , without a Rule 403 objection, and the jury heard the audio recording , S.M. had already testified to the 2000 allegations without a Rule 403 objection

. Additionally, one of the defense’s own witnesses, Bible’s wife, acknowledged that she was aware of a situation involving S.B. that occurred in 2000 and that she did not know anyone who saw anything happen between S.B. and Bible

. On cross

- examination, without an objection from the defense, Bible’s wife testified that she was aware of a 2000 physical altercation between Bible and his so n. Even the erroneous admission of evidence will not require reversal when the same or similar evidence was received without objection, either before or after the complained

- of evidence. See Coble v. State , 330 S.W.3d 253 , 282 (Tex. Crim. App. 2010)

. Bib le’s hearsay objections to S.M.’s testimony cannot be used to support a different legal theory, violation of Rule 403 , on appeal. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); see also Camacho , 8647 S.W.2d at 533

. Because the same or similar evidence was admitted through S.M.’s testimony, without an objection on the proper evidentiary basis, and Bible’s own defense witness, Bible has forfeited any complaint regarding the interview and Wood’s testim ony on the same subject ma tter. See Coble , 330 S.W.3d at 282

. W e overrule issue one.
In issue s two and three , Bible challenges the admission of t estimony from A.W., the victim o f a 1983 sexual abuse offense involving Bible. Bible contends that A.W.’s testimony was admitted into evidence in violation of Rule s of Evidence 403 and 404. During discussions regarding Wood’s recorded interview with Bible, the trial co urt ordered that the recording b e redacted to exclude any conversations related to A.W. Before A.W. testified , the defens e argued that her testimony was irrelevant, not probative, and prejudicial. The trial court overruled the objection on grounds that the evidence was admissible to rebut the defensive theory of recent fabrication , but stated that A.W. could not testify that Bible went to prison for the offense. The trial court gave the jury a limiting instruction before A.W.’s testimony. A.W. testified that Bible was a family friend and that when she was seven years old, Bible sex ually assaulted her

. Rebuttal of a defensive theory is a permissible purpose for which evidence may be admitted under Rule 404(b). Williams v. State , 301 S.W.3d 675, 687 (Tex.8 Crim. App. 2009). Specifically, e xtraneous

- offense evidence is admissible to re but the defensive theory that the complainant fabricated the all egations against the defendant. Bass v. State , 270 S.W.3d 557 , 563 (Tex. Crim. App. 200 8 ). In this

case, the defense raised the issue of fabrication by arguing that S.M. lodged allegations against Bible because she did not want her boyfriend to know that her father was her abuser and by questioning S.M. on this topic. On appeal, Bible contends that A.W.’s testimony could not be used to rebut his defense because the 1983 offense i s not suffic iently similar to the charged offense. An extraneous offense offered to rebut a defensive theory of fabrication does not require the same degree of exacting similarity between the extraneous and charged offenses as does an extraneous offense offered to p rove a defendant’s system of committing criminal acts

. Dennis v. State , 178 S.W.3d 172, 179 (Tex. App.

— Houston [1st Dist.] 2005, pet. ref’d). The charged offense and the extraneous offense must at least be similar. See Wheeler v. State , 67 S.W.3d 879,
8 8 7 n.22 (Tex. Crim. App. 2002). In this case, b oth S.M. and A.W. are female,
both were children at the time of the abuse, both were around the same age at the time of the abuse, Bible knew both of the victims , and though not identical, both offenses involved similar sexual acts

. I t is subject to reasonable disagreement whether A.W.’s testimony was admissible for the noncharacter

- conformity purpose9 of rebutting Bible’s defensive theory that S.M. fabrica ted her allegations against him. See Bass, 270 S.W.3d at 563 . It is also subject to reasonable disagreement whether A.W.’s testimony made Bible’s defensive theory of fabrication less probable. See id

. Under these circumstances, the trial court did not abuse its discretion by concluding that A.W.’s testimony was admissible to rebut Bible’s defensive theory of fabrication

. Nevertheless, even relevant evidence may be e xcluded if its probative value
i s substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. A
R ule 403 balancing test considers : (1) the inherent probative force of the proffered item of eviden ce along with (2) the proponent’ s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to conf use or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evide nce will con sume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State , 210 S.W.3d 637, 641

- 42 (Tex. Crim. App. 2006). Rule 403 envisions exclusio n of evidence only when there is a clear disparity between the degree of prejudice of the extraneous

- offense evidence and its probative value.
Hammer v. State , 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). Rule 403 favors the admission of relevant evidence and presumes that relevant evidence will be10 more probative than prejudicial. Gallo v. State , 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). On appeal, Bible complains that the 1983 offense was too remote from the charged offense and that the State had already introduced evidence of the 2000 offense, thereby reducing the probative value of A.W.’s testimony. Although the remoteness of an extraneous offense impacts its probative value, there is no

“ presumptive ti me limitation which must be met for an extraneous offense to have probative value. ” Newton v. State , 301 S.W.3d 315, 318 (Te x. App.

— Waco 2009, pet. ref’d). A.W.’s testimony was probative to rebut Bible’s d efensive theory of fabrication, but this factor wei ghs only slightly in favor of admissibility , given the remoteness of the 1983 offense. See id . at 320. While the State had presented evidence of the 2000 offense, b ecause there were no witnesses to the abuse of S.M. and Bible claimed S.M. fabricated her allegations , the trial court could have determined that the State had a considerable need for evidence of the 1 983 offense

. See id

. A.W.’s testimony consumed a relatively small portion of the evidence presented at trial , was not cumulative, and, in closi ng, the State argued that A.W.’s testimony was offered as evidence to rebut Bible’s defensive theory of fabrication. Additionally the trial court’s limiting instruction, which restricted the jury’s11 consideration of A.W.’s testimony to rebut the defensive t heory of fabrication and for no other purpose, minimized any impermissible inference of character conformity

. See Lane v. State , 933 S.W.2d 504, 520 (Tex. Crim. App. 1996). Finding no clear disparity between the degree of prejudice of the 1983 offense and its probative value , we hold that the trial court did not abuse its discretion by admitting A.W.’s testimony into evidence

. See Hammer , 296 S.W.3d at 568. We overrule issues two and three and affirm the trial court’s judgment.
AFFIRMED.

________________________________ STEVE McKEITHEN Chief Justice Submitted on June 19, 2013 Opinion Delivered July 10, 2013 D o Not Publish Before McKeithen, C.J., Gaultney an d Kreger , JJ.